M.K. Asharaf v. John (Driver of Road Roller) and M/S United Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 ## **MACA.No. 1806 of 2005** OPMV.742/1998 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR APPELLANT: RESPONDENT NO.2. ---------------------------------------- THE PROJECT OFFICER, DISTRICT RURAL DEVELOPMENT AGENCY, CIVIL STATION, KAKKANAD. BY GOVERNMENT PLEADER SRI.L.G.SURESH BABU RESPONDENTS: PETITIONER AND RESPONDENTS 1 & 3. ------------------------------------------------ 1. M.K.ASHARAF, S/O.M.M.KOYA, MANGALIPPARA HOUSE, VALAYANCHIRANGARA P.O. PERUMBAVOOR, ERNAKULAM DISTRICT. 2. JOHN, ROAD ROLLER VEHICLES(DRIVER) - C/O.THE PROJECT OFFICER, DISTRICT RURAL DEVELOPMENT AGENCY, CIVIL STATION, KAKKANADU. 3. M/S.UNITED INSURANCE CO.LTD., DIVISIONAL OFFICE, ERNAKULAM. R3 BY ADV. SRI.P.JAYASANKAR R1 BY ADV. SRI.WILSON URMESE R2 BY ADV. SRI.P.V.ELIAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/7/2010, THE COURT ON 16/08/2010 DELIVERED THE FOLLOWING: ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------M.A.C.A. NO. 1806 OF 2005 B -----------------------------------------------------Dated this the 16[th] day of August, 2010** ## **JUDGMENT** The question involved in this appeal is whether the right to make an application for compensation under Section 166 of the Motor Vehicles Act, 1988 can be waived by the injured. 2. The first respondent, M.K.Asharaf, met with an accident on 16.3.1995. While he was walking along the side of the road, a road roller, driven by the second respondent and owned by the appellant (the Project Officer, District Rural Development Agency, Civil Station, Kakkanad) hit on the injured. It was alleged that the road roller was being driven in a rash and negligent manner. The Motor Accidents Claims Tribunal found so. The injured claimed a sum of Rs.3 lakhs as compensation. 3. The driver of the vehicle remained exparte. The appellant contended that a sum of Rs.25,000/- was paid, as evidenced by Ext.B1, at the time when the injured was admitted in the hospital. ## M.A.C.A. NO.1806 OF 2005 :: 2 :: Later, another sum of Rs.25,000/- was paid to the injured in full and final settlement of all the claims. It was therefore contended by the appellant that the injured was not entitled to make any claim under Section 166 of the Motor Vehicles Act. 4. The third respondent Insurance Company contended that the vehicle was not insured at the relevant time and, therefore, the Insurance Company was not liable. This contention was accepted by the Tribunal. 5. The contention that the application is barred in view of acceptance of Rs.50,000/- was negatived by the Tribunal. The Tribunal held that the injured is entitled to get a sum of Rs.90,650/as compensation and after deducting Rs.50,000/- paid to him, he is entitled to realise the balance amount of Rs.40,650/- as compensation together with interest at 9% per annum from the date of application. 6. The injured was admitted in the hospital from 16.3.1995 to 20.5.1995 and thereafter from 14.4.1998 to 20.5.1998. He had sustained serious injuries and he had to undergo surgery. The M.A.C.A. NO.1806 OF 2005 :: 3 :: injured was a registered headload worker, as spoken to by the Assistant Labour Officer. The injured contended that he was earning a monthly income of Rs.3,000/-. However, the Tribunal assessed the monthly income of the injured at Rs.1,500/-. The evidence shows that the injured had sustained disability to the tune of 10%. Taking into account the various factors, the Tribunal fixed a total sum of Rs.90,650/- as compensation. The amount awarded by the Tribunal is reasonable. In fact, no contention is raised in the Memorandum of Appeal that the amount awarded is excessive. 7. Learned Government Pleader contended that going by Exts.B1 and B2, it is clear that Rs.50,000/- was paid in full and final settlement of all the claims of the injured. In Ext.B1, Rs.25,000/- was fixed and it was received by the injured towards the compensation and for future treatment expenses. Thereafter, another sum of Rs.25,000/- was paid, probably because the medical expenses exceeded the anticipated figure and the injured had to remain in the hospital for quite long. The question is whether the right of an injured to claim compensation can be waived by him by accepting some amount offered by the person liable to pay the compensation. M.A.C.A. NO.1806 OF 2005 :: 4 :: 8. Section 166 of the Motor Vehicles Act provides for submitting an application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165. Section 165 of the Motor Vehicles Act states that the State Government may, constitute Motor Accidents Claims Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising, or both. Section 167 of the Act provides that notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death of, or bodily injury to, any person gives rise to a claim for compensation under the Motor Vehicles Act and also under the Workmen's Compensation Act, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. Section 168 provides for the award of the Claims Tribunal. It provides that the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may ## M.A.C.A. NO.1806 OF 2005 :: 5 :: make an award determining the amount of compensation which appears to it to be just. Section 162 provides for refund of the compensation awarded under Section 161 of the Act. Section 161 contains special provisions as to compensation in case of hit and run motor accident. 9. It is also apposite to refer to Section 17 of the Workmen's Compensation Act, 1923 in this regard, which reads as follows: “17. Contracting out:- Any contract or agreement whether made before or after the commencement of this Act, whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course or the employment, shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act.” 10. Had the injured been an employee of the person against whom an application was filed under the Workmen's Compensation Act, by virtue of Section 17 of the Workmen's Compensation Act, the employer could not make a defence that the amount of compensation was already paid and therefore, the application was ## M.A.C.A. NO.1806 OF 2005 :: 6 :: not maintainable. An employee can make the application for compensation, either under the Workmen's Compensation Act or under the Motor Vehicles Act. Would the position be different if the claimant is a stranger and not a workman of the person against whom compensation is claimed, or could there be different treatment in different types of claims in the matter of contracting out? 11. The right to get compensation for the injured or for the legal representatives of the deceased is a measure for social welfare and, to that extent, the Act is a social welfare legislation. There are provisions in the Motor Vehicles Act for granting compensation even if the person responsible for causing injury is not identified. Section 140 provides for liability of the owner of the vehicle to pay compensation in certain cases on the principle of no fault, where death or permanent disablement of a person has resulted from an accident arising out of the use of a motor vehicle. The claim under Section 140 of the Act cannot be defeated by reason of a wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made. The quantum of compensation shall also not be reduced on the basis of the share of such person in the responsibility for such death or permanent M.A.C.A. NO.1806 OF 2005 :: 7 :: disablement. Section 168 mandates that the Tribunal shall hold an inquiry for the purpose of determining the amount of compensation which appears to it to be just. The jurisdiction to decide what is just compensation is conferred on the Tribunal and only on the Tribunal. The owner of the vehicle has no right to determine the compensation, though out of goodwill or out of compassion he may offer some amount as compensation. That does not mean that the right of a person to claim compensation is defeated by a contract entered into between the owner of the vehicle and the injured. A right which an injured or the legal representatives of a deceased has under the Motor Vehicles Act cannot be contracted out, or the amount which a person is entitled to receive as compensation be reduced by a contract. Even if such a contract was the result of a real consensus between the parties, the maximum that could be said is that the amount granted to the person concerned could be taken note of by the Tribunal while fixing the compensation and that amount can be directed to be deducted out of the total amount of compensation. Any contract entered into between the owner of the vehicle and the person who is entitled to receive the compensation, contracting out of the liability, would be void to the extent of the right M.A.C.A. NO.1806 OF 2005 :: 8 :: to claim a just compensation and to the extent of the jurisdiction of the Tribunal to fix a just compensation. 12. In the case of a claim under Section 125 of the Code of Criminal Procedure, the right of a wife to claim maintenance was held to be not capable of being contracted out. In **Bhupinder Singh** v. **Daljit Kaur** (1979 Crl.L.J.198) the Supreme Court held that a compromise between the parties is not a valid defence against execution of an order under Section 125 of the Code of Criminal Procedure. It was held thus: “Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself. If the husband has a case under S.125(4), (5) or S.127 of the Code it is open to him to initiate appropriate proceedings. But, until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of Section 125 (4) or (5) or S.127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence. ..” ## M.A.C.A. NO.1806 OF 2005 :: 9 :: ## 13. In **Damodaran** v. **Lakshmikutty Amma** (1979 KLT 543), it was held that no party can be permitted to contract himself out of an obligation to maintain his wife and children and if it is permitted, it would certainly be defeating a legal right statutorily conferred under Sections 125 and 127 of the Code of Criminal Procedure. A contract taking away such a statutory right is opposed to public policy. 14. Sub-section (1-A) of Section 60 of the Code of Civil Procedure provides that an agreement by which a person agrees to waive the benefit of any exemption under Section 60 of the Code shall be void. 15. The right of an injured or the legal representative of a deceased to claim compensation under the Motor Vehicles Act is a right guaranteed under the Act and it is indefeasible. The rights of the beneficiary under the provisions of the Act cannot be defeated by contracting out of the liability of the opposite party. Any such contract would be illegal and it would be against public policy. If such a contract is against public policy, it would be void. To my mind, a purposive interpretation of Sections 167 and 168 of the M.A.C.A. NO.1806 OF 2005 :: 10 :: Motor Vehicles Act and Section 17 of the Workmen's Compensation Act would lead to the conclusion that a claim under the Motor Vehicles Act for compensation cannot be waived or contracted out to the detriment of the interests of the person entitled to get compensation. Any such agreement would be against public policy and it would be void. 16. The Tribunal has fixed a just compensation. It has even directed that the amount already paid would be deducted from the total amount of compensation. This would avoid unjust enrichment of the claimant. The contention put forward by the appellant that by Exts.B1 and B2, the liability of the appellant to pay compensation is wiped out, is not legally sustainable. 17. The learned Government Pleader also contended that the interest awarded is excessive. In the light of the decision of the Supreme Court in **Dharampal** v. **U.P.State Road Transport Corporation** (2008 (2) KLT 691), the award of interest would depend upon the facts and circumstances of each case and it would normally depend upon the bank rate at the relevant time. In this case, the accident occurred on 16.3.1995. The injured had to undergo ## M.A.C.A. NO.1806 OF 2005 :: 11 :: prolonged treatment. He filed the application for compensation only in 1998. The Tribunal awarded interest at 9% per annum from the date of application. No ground is taken in the Memorandum of Appeal that the interest awarded is excessive. In these circumstances, I do not think that any variation of the award on this ground is required. In fact, the amount awarded by the Tribunal is on the lower side. Had the claimant filed a Memorandum of Cross Objection, probably this Court would have enhanced the compensation. In the peculiar facts and circumstances, I am not inclined to accept the contention put forward by the appellant that interest awarded is excessive. For the aforesaid reasons, the Appeal is dismissed. However, there will be no order as to costs. **(K.T.SANKARAN) Judge** ahz/